WEEKLY NOTES OF CASES. or otherwise to take only her real estate as tenant by the curtesy.' It was claimed that under this Act by his election he was entitled to one-half of the personal estate absolutely and one-half of the real estate for life. The manifest intention of the VOL. XLIII.] FRIDAY, FEB. 10, 1899. [No. 18. Act is to equalize the respective interests of the Supreme Court. Jan. '98, 178. Supreme Court. January 6, 1899. Estate of Anna C. S. Seltzer. Husband's election to take against wife's Act of May 4, 1855, P. L. 430. surviving husband or wife in each other's estates. That is to say, notwithstanding any will made by either of them, the survivor could refuse to take under the will and elect to take the share or interest that the other would have taken if they had survived. In this case there is a surviving husband who has filed his election to take against his wife's will. He has children by a former marwill-riage. Under these circumstances if she survived him she could only have taken against his will one-third of his personal estate and one-third of The share which a surviving husband or wife may the real estate for life. Can he take any greater take in the other's estate is determined by the ex-share or interest in her estate than she could have istence or absence of issue of the decedent, and is in no wise affected by the existence or absence of issue taken in his? We think not. What the survivor of the survivor. can take in any case is measured by what the decedent could have taken in the estate of the survivor in case he or she had died first. It is 'such share or interest in the real and personal estate' as the other could have taken. In this A. died, leaving to survive her her husband and no children. The husband had children by a former marriage. The husband elected to take against the will: Held, he was entitled to one-half of the real estate for life and one-half of the personal estate abso- case the surviving husband is only entitled to lutely. Appeal of William G. Seltzer, from the decree of the Orphans' Court of Philadelphia County, in the matter of the estate of Anna C. S. Seltzer, deceased. one-third of the personal estate and to one-third of the real estate for life." A decree was made in accordance with this opinion. The petitioner appealed, assigning as error the refusal of the Court to award an inquest to set aside one-half of decedent's real estate for life, as petitioner's interest therein. The petition of William G. Seltzer set forth that Anna C. S. Seltzer died April 7, 1896, leaving a will by which she devised and bequeathed all her property to strangers, and nothing to her husband; that decedent left a husband-the petitioner-but no children or other relative; that petitioner had filed his election to take his share "The power of any married woman to beunder the Act of Assembly of May 4, 1855, to wit: queath or devise her property by will, shall be one-half the personal estate and one-half the in- restricted as regards the husband to the same excome of the real estate; and concluded with a tent as the husband's power so to dispose of his prayer for partition and that petitioner's portion property is restricted as regards the wife." of the real estate be set apart to him. John Dolman, for appellant. The language of the Act of 1855 does not bear out the construction of the learned Court below. The words of the first paragraph are: There can be no question that this language The answer denied the petitioner's right to any- looks to a general rule of distribution. Do the thing, on the ground that he had deserted tes-succeeding words alter this? The husband "may tatrix. The Orphans' Court found that the peti- against her will elect to take such share and intioner had not deserted his wife, and upon the terest in her real and personal estate as she can matter of the share which he was entitled to take when surviving elect to take against his will in in his wife's estate, the petitioner having had his estate." children by a former wife, FERGUSON, J., delivering the opinion of the Court, said: "To what, then, is he entitled under the law and the facts of this particular case? He has, under the Act of May 4, 1855, elected to take against his wife's will 'such share and interest in her real and personal estate as she can when surviving elect to take against his will in his estate, Not such estate as she could have taken had she survived and he died, but such as she can when surviving. These words, "as she can when surviving," are utterly meaningless in the construction given by the learned Court below. The Act clearly contemplates a general fixed rule of distribution, and means that the husband can against his wife's will take the same share that she could have taken had he died leaving the sonalty absolutely and half his real estate for life, same heirs that she left, namely, a widow's share but if he left a child or children, no matter how under the intestate laws. many, she took in the same way one-third inWilliam H. Staake, (Arthur M. Burton with stead of half. By the Act of 1848 as above said, him), for appellees. she was empowered to take in this manner even against his will. January 30, 1899. MITCHELL, J. By the Act of This was the state of the law when the Act May 4, 1855, P. L. 430, "the power of any mar- under discussion was passed, and it will be seen ried woman to bequeath or devise her property that the circumstance of children or no children by will, shall be restricted as regards the hus- of the party taking was wholly irrelevant. It was band, to the same extent as the husband's power only out of the existence or absence of children so to dispose of his property is restricted as re- of the party whose estate was to be distributed gards the wife. Namely, so that any surviving that any question of rights could arise. If the husband, may, against her will, elect to take such husband died his widow, under the Act of 1833. share and interest in her real and personal estate took one-third or one-half according as he had as she can when surviving, elect to take against or had not issue living, whether she had any of his will in his estate, or otherwise to take only not. If the wife died intestate the husband under her real estate as tenant by the curtesy." The the Act of 1848, took the whole personalty if she construction of this section is the sole question left no issue, but if she left issue, then he took before us. Did the Legislature intend to make a only an equal share with each of them no matter special rule to be applied in each case according how many there were, and not in anywise affected to the circumstances of the particular husband by his having or not having children of his own. and wife in respect to children, or did it intend This condition of the law was soon seen to reto make a general rule, applicable to all cases, sult in inequality to the prejudice of the husband. whereby husbands and wives should have similar When he died his widow took at least one-third rights under similar circumstances? Standing of his personalty under any circumstances, and by itself the language is susceptible of either con- no act of his could lessen this share. On the struction, but taken in connection with the his- other hand, when she died first, he took only a tory of legislation on the subject, the question is child's share of the personalty no matter how easily answered. small a fraction that might be, and even of that The Act of April 11, 1848, P. L. 536, common- she could entirely deprive him by will. The penly known for half a century as the married wom-dulum had swung too far. From the entire aban's Act, was the first of the modern statutes sorption of her personal property by the husband that have revolutionized the common law status at common law, the wife was now not only freed of married women as to their property. By that during marriage, but vested with a testamentary Act her property continued to be hers as com- control to his exclusion, far greater than his conpletely after marriage as before, so far as related trol of his own as against her. It was to remedy to the control or interference of her husband or this last condition that the Act of 1855 was liability for his debts. By section 7 she was passed, and its plain intent was to produce equalgiven the power to dispose of her separate prop-ity by a general rule giving them equal and simerty real and personal, by will; by section 9, if ilar rights under similar circumstances. This is she died intestate leaving no children the hus- clearly expressed in the first sentence: "The band took the personal estate, but if there were power of any married woman to bequeath or dechildren living they and the husband took the vise her property by will shall be restricted as personalty share and share alike, the descendants regards the husband to the same extent as the of dead children taking per stirpes their parent's husband's power to dispose of his property is share; by section 10, the real estate was distrib-restricted as regards the wife." Had the Act uted as provided by the intestate laws then in stopped here, there would have been no ambiguforce; with a proviso that nothing in the Act ity, nor any room for question as to the construcshould be deemed to deprive the husband of his tion; the husband would take in her estate what right as tenant by the curtesy; and by section 11, she could have taken under the Acts of 1833 and the eleventh section of the wills Act of April 8, 1848, in his, if he had died first, one-third or 1833, P. L. 249, was not to be construed to de-one-half according as the deceased party had or prive the widow electing to take against her hus- had not left issue, without regard to the existence band's will of her share of the personalty as well or absence of children of the surviving party who as of the realty. By the intestate Act of April was entitled to take. But the Act continues, 8, 1833, P. L. 316, the widow of a man dying in- "namely so that any surviving husband may, testate and without child took one-half his per- against her will, elect to take such share and in terest in her real and personal estate as she can, ing at the determination of the question whether when surviving, elect to take against his will in the construction complained of did or did not cause his estate, or otherwise to take only her real a loss and to what extent these matters affected the market value of the property. estate as tenant by the curtesy." This phrase as already said is susceptible of construction Appeal of Frederick Shano, from the judgment either as a general rule for both parties in similar of the Common Pleas No. 1, of Allegheny Councircumstances, or as a special rule to be applied ty, in an action of trespass wherein the Fifth in each case according to the special circum- Avenue & High Street Bridge Company was destances not only of the deceased wife but of the fendant. surviving husband. The former construction is The facts of the case appearing at the trial, be in entire harmony with the plain and only tenable fore COLLIER, J., were as follows: The plaintiff construction of the preceding sentence, while owned a brick dwelling house, erected on a lot the latter is at variance not only with it but with laid out in McKeesport, on Fifth avenue, frontthe general intent of the Act, and introduces an ing sixty feet and extending back one hundred element as to children of the survivor not before and forty feet. at which point it was about five feet above the surface of the street, making underneath the bridge at that point, in front of Shano's door, a dark retiring place. relevant or material to either party, and not now The defendant commenced the erection of a relevant in the case of the wife. For it must be bridge by building a large stone abutment in the observed that the Act of 1855 makes no change roadway of Fifth avenue immediately in front of in the rights of the widow in her husband's es- plaintiff's property, five and a half feet in height, tate, it simply imposes a restriction on the wife's forty-four feet in length and twenty-eight feet in testamentary power over her own. The widow width, abutting against the curbstone upon the can still take against her husband's will one-third plaintiff's side of the street, and leaving but eight or one-half of his estate, according as he has or feet of the roadway upon the opposite side. The has not left surviving issue, without regard to end of the floor of the bridge started from this whether she has issue of her own or not. The abutment immediately in front of Shano's house, view of that law is that if the decedent whose estate is to be distributed, has left issue whom he is under a moral if not a legal obligation to provide for, they shall not be deprived of their shares except by express will of the testator himself, and as to them it is immaterial whether the widow has no children or many. That is the status of the widow's right since the Act of 1855 as well as before, and it was the intent of that Act to put the rights of the surviving husband on the same footing. The share which the survivor takes is determined by the existence or absence of issue of the decedent, and is in no wise affected by having or not having issue of his or her own. The footwalk on the bridge extended out over the sidewalk in front of Shano's property, and was just of the elevation to allow people passing on the bridge to look into the second story windows of his house. The bridge totally obstructed all view or prospect from the plaintiff's premises. Dirt accumulated on the bridge and was driven by the wind into Shano's house. After the floor of the bridge left the abutment, it was supported upon hollow iron columns. Decree reversed and directed to be amended in Traffic on the bridge disturbed the quiet in plainaccordance with this opinion. Oct. '98, 217. Supreme Court. G. H. S. November 11, 1898. Shano v. Bridge Company. tiff's house and at night was sometimes excessively annoying. The defendant asked the Court to charge: "That any evidence in the case in regard to noise, dust, invasion of privacy, or anything of this sort, is not the basis for recovery by the Construction of bridge in plaintiff. It is only evidence to be considered by front of private property. the jury in weighing the testimony of witnesses as Measure of damage Where property is injured by the construction of to value of the property as unaffected by the public works the measure of damages is the differ-bridge in question compared with the value of ence between the market value of the property be- the property in question affected by the construcfore and that after the construction. tion and operation of the bridge." Affirmed. (First assignment of error.) The creation of noise and dust, the invasion of privacy, the deprivation of light and means of access, burden of additional fencing and like matters, "The jury has no right to consider what its are to be taken into consideration as affecting the view of the damages would be by reason of noise, market value and it is the right of the jury to con- dirt or invasion of privacy. Those circumstances sider evidence of such matters with a view to arriv- are only circumstances to be considered in deter mining the credibility of the testimony of wit- In the first point the Court was asked to innesses who testified to the market value before struct the jury: "That any evidence in the case and after the property was affected by the in regard to noise, dust, invasion of privacy, or bridge." Affirmed. (Second assignment of anything of this sort, is not the basis for recovery error.) by the plaintiff. It is only evidence to be considered by the jury in weighing the testimony of witnesses as to the value of the property as unaffected by the bridge in question compared with Verdict for plaintiff, for $2773, and judgment thereon. Plaintiff appealed, assigning error, inter alia, as above indicated. Johns McCleave, (with him W. B. Rodgers and the value of the property in question affected by D. T. Watson), for appellant. the construction and operation of the bridge." Under the new Constitution the plaintiff was And in the fifth that: "The jury has no right to entitled to compensation for all the damages di- consider what its view of the damages would be rect or consequential which he suffered or might by reason of noise, dirt or invasion of privacy. suffer in consequence of the building and opera- Those circumstances are only circumstances to tion of the defendant's road. be considered in determining the credibility of the testimony of witnesses who testified to the market value before and after the property was affected by the bridge." Railroad Co. v. McCutcheon, 18 WEEKLY The jury is not to estimate the noise and dust and smoke and jarring incident to the defendant's construction, but they have a right to consider the effect of such disadvantages as these upon the value of the property. Comstock v. Railroad Co., 169 Pa. 589. Evidence in regard to noise, dust and invasion of privacy went directly to show the manner in which the construction of the bridge had affected the plaintiff's property. If it showed loss to him it established a basis for recovery. If it showed the extent of the loss due to depreciation in market value it showed the legal measure of damages E. P. Douglass, (with him J. S. Ferguson, E. G. to which he was entitled. It was the right of the Ferguson and H. H. Swaney), for appellee. jury to consider this evidence, both to determine whether there was a loss, and to what extent these matters affected the market value. It was The measure of damages is the difference between what the property would have sold for before and after the defendant's bridge was con-not to be considered only in weighing the testistructed. Hoffer v. Penna. Canal Co., 87 Pa. 224. mony of witnesses who had been examined or in determining their credibility. The question of credibility was not raised or involved. The noise, January 2, 1899. FELL, J. Where property is dust, invasion of privacy, obstruction of light and injured by the construction of public works, the interference with means of access were the matmeasure of damages is the difference in the mar-ters shown as affecting the value of the property. ket value of the property before and after the The jurors had examined the property and from construction. The creation of noise and dust, what they saw and knew as well as from the testhe invasion of privacy, the deprivation of light timony of witnesses they were to form their own and means of access, the burden of additional judgment; the expert testimony was an aid only fencing, and like matters are to be taken into in enabling them to reach a conclusion. consideration as affecting the market value. They The rule for the measure of damages was clearare not separately to be estimated item by item ly and correctly stated in the general charge, but and a result to be reached by adding together the different estimates; nor is the effect upon the particular owner because of anything peculiar to himself or his business to be taken into consideration. The owner's loss is measured by the difference in the market value of his property; this includes all the elements of depreciation and But the separate represents the whole loss. items are to be considered not as distinct items of loss, but as they affect the market value. This is the rule established by a long line of cases, among the more recent of which are Dawson v. Pitts., 159 Pa. 317; Reyenthaler v. Phila., 160 Pa. 195: Comstock v. Ry. Co., 169 Pa. 582; Struthers v. R. R. Co., 174 Pa. 291. the jury may well have understood from the answers to these points that in fixing the damages they were to exclude from their consideration the injury due to noise, dirt and invasion of privacy. The first and second assignments of error are sustained, and the judgment is reversed with a venire facias de novo. W. D. N. Oct. '98, 196. Supreme Court. November 10, 1898. as error the refusal of the Court to take off the Heister v. Fawn Township. non-suit. Negligence-- Township--Roads--Proximate cause. Where the proximate cause of the injuries, which are the basis of a suit in trespass, is the taking fright of plaintiff's horse at a casual object in a public road, the fact that the road is raised some fifteen feet without guard or parapet but is level and safe for ordinary travel, does not import negligence on the part of defendant. Appeal of Isaac Heister, Sr., and Patience, his wife, from the judgment of the Common Pleas No. 3, for Allegheny County, in an action of trespass wherein the Township of Fawn of Allegheny County was defendant. N. W. Shafer, (N. McVicar with him), for appellants. It is not a defence to show that by careful driving the accident might have been avoided at the place in question. Lower Macungie Twp. v. Merkhoffer, 71 Pa. 276. Was the declivity dangerous? If it was, it is admitted it was not protected. The jury ought to have had an opportunity to have found the fact. Burrell Township v. Uncapher, 117 Pa. 353. Kitchen v. Union Township, 171 Id. 151. David Smith, (R. A. Kennedy with him), for appellee. On the trial, before MCCLUNG, J., the plaintiff showed the following case: January 2, 1899. MITCHELL, J. According to Patience Heister, one of the plaintiffs, on June 4, 1893, was in a all the evidence the road at the point where the carriage which was driven by her son along a accident took place was smooth, level and of sufpublic road within the boundaries of the defenficient width for ordinary travel. The absence of dant township. On the east side of the road was a parapet or guard rail was not in any sense the an abrupt embankment and on the west side was proximate cause of the accident, though if one an unprotected declivity, which fell eight and had been there the consequences might have been four-tenth feet in the first ten feet, and four and less serious. Even that, however, is entirely consix-tenth feet in the next fifteen feet. At or near jectural. But there was nothing in the occasion the point of the accident were some seven or of the accident or the manner of its occurrence eight cattle, some of which were standing and which the township could reasonably have been others lying down at the time of the acicdent. required to foresee and provide against. FurMrs. Heister and her son had passed two or ther, if the township was bound to anticipate the three of the cattle, when they reached one lying conjuncture of circumstances which led to the acat the base of the embankment, which left about cident, while they were in the future, and was ten feet of the road clear. The buggy in which negligent in not providing against their possible they were traveling occupied four and nine-tenth happening, the plaintiff must have been at least feet of the ten clear feet of the road. As they equally negligent in not guarding against them were passing the aforesaid cow, she arose, frightwhen they were present or imminent. But we ened the horse, which shied to one side and pre-ficient evidence of negligence on the part of deprefer to rest the case on the absence of any sufcipitated the occupants of the buggy over the declivity, from which they received severe injuries. fendant. Judgment affirmed. W. D. N. Superior Court. Rees & Sons Co. v. Hulings et al. At no point after the cattle could be seen was it possible to turn the horse and buggy around without backing the buggy over the declivity. The young man could not drive the cattle away without imperiling his mother, as he could not April, '98, 205. leave the horse and buggy in a safe place after they could see the cattle. His mother was inexperienced with horses and never drove them; she was sixty years of age. The son had handled horses all his lifetime. He had owned and driven this particular horse eighteen months prior to the accident. The horse was quiet and unexcitable and the son had often driven him by cattle and other objects tending to frighten horses without his taking alarm. Sheriff's sale Distribution of fund-Preference The validity of a labor claim to priority in the distribution of a fund made by a sheriff's sale of property, depends on the fact that the property has been used in connection with, or in carrying on the business or purpose in the course of which the work for which wages are claimed was done. Labor or ser On motion, the Court granted a non-suit, vices rendered in original equipment or construction which the Court in banc refused to take off. The of the property are not within the provisions of the plaintiffs thereupon took this appeal, assigning acts. |